Chatoor v. Xerox Global Services, 2011 HRTO 2232

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karissa Chatoor Applicant

-and-

Xerox Global Services, Manpower Services Canada Limited and Tara Anoop-Sookdeo Respondents

A N D B E T W E E N:

Trisha Puran Applicant

-and-

Xerox Global Services, Manpower Services Canada Limited and Peter Lyn Respondents

INTERIM DECISION

Adjudicator: Sherry Liang Date: December 12, 2011 Citation: 2011 HRTO 2232 Indexed as: Chatoor v. Xerox Global Services

1These are two Applications filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). They concern different applicants, but the corporate respondents are the same, and they arise out of the same workplace.

2In filing its Responses to each Application one of the respondents, Manpower Services Canada Limited (“Manpower”) requested early dismissal of the Applications on the basis that the issues are governed by federal and not provincial human rights law. This issue was not raised in the Responses filed by the respondent Xerox Global Services (“Xerox”). Xerox does, however, deny that it has an employment relationship with the respective applicants, for reasons described below.

3By Case Assessment Direction dated October 11, 2011, the Tribunal directed Xerox to state its position on the issue of whether provincial or federal human rights law applies to the matters covered by the Application and provide particulars of the facts in support of its position, and to address the submissions of Manpower. The other parties were directed to file submissions in response to those of Xerox, which must state whether they dispute the facts set out by Xerox and set out any alternative understanding of the facts.

4The Tribunal also requested the parties’ submissions on whether the Applications may be dealt with together solely for the purpose of deciding on the jurisdictional issue.

BACKGROUND

5Xerox is a division of Xerox Canada Inc. It states that Xerox Canada Inc. carries on business throughout Canada “as a leading enterprise for business process and document management”, including the provision of “technology and service solutions to assist in the business operations of its customers.”

6Xerox has a facility on Tapscott Road in Scarborough, Ontario (the Tapscott location) that it describes as a “manufacturing and storage facility” devoted exclusively to providing services to one client, the Canadian Imperial Bank of Commerce (“CIBC”). Xerox has a contractual relationship with Superior Staff Resources Corp (“Superior”), a staffing agency which provides contract workers to various Xerox locations. It also has a contract with the respondent Manpower under which Manpower provides contract workers for the Tapscott location. Xerox states that the applicants were assigned by Manpower to work at the Tapscott location, under this contract, and that Manpower is exclusively responsible for the management of its workers, including the applicants.

7In its Responses, Manpower states that it is a temporary staffing services agency. It states that the Tapscott location of Xerox provides storage, faxing and scanning services exclusively to the CIBC. Manpower employees at the Tapscott location perform part of their work in conjunction with Superior and Xerox.

8Manpower acknowledges that it is the employer of workers assigned to work at the Tapscott location, including the applicants. As indicated, Manpower requested early dismissal of the Applications on the basis that the issues are governed by federal law, and not by the Code. Essentially, Manpower submits that the CIBC is governed by federal law, and that Manpower’s services are integral to the operations of CIBC, a federal work or undertaking.

9Both applicants filed Replies to the Responses, providing submissions on the issue of the Tribunal’s jurisdiction.

10In response to the Tribunal’s Case Assessment Direction, Xerox states that it adopts and agrees with the submissions contained in Manpower’s Responses regarding the jurisdiction of the Tribunal. It does not provide any additional facts or submissions on the issue. Manpower has not filed any further submissions.

DECISION

11Neither Manpower nor Xerox assert that they are a federal work or undertaking within the meaning of the Constitution Act, 1867. Rather, they take the position that the work they perform for the CIBC, directly or indirectly, is integral to the CIBC as a federal work or undertaking.

12The nature of the inquiry into whether the labour relations of a business is governed by federal or provincial law has been described in various ways. The recent Supreme Court of Canada decision in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union, 2010 SCC 45, is instructive on this issue. In that decision, the Supreme Court stated,

Jurisdiction over labour relations is not delegated to either the provincial or federal governments under s. 91 or s. 92 of the Constitution Act, 1867. But since Toronto Electric Commissioners v. Snider, 1925 CanLII 331 (UK JCPC), [1925] A.C. 396 (P.C.), Canadian courts have recognized that labour relations are presumptively a provincial matter, and that the federal government has jurisdiction over labour relations only by way of exception.

13In Construction Montcalm Inc. v. Minimum Wage Commission, 1978 CanLII 18 (SCC), [1979] 1 S.C.R. 754 (“Montcalm”), the Supreme Court found that the labour relations of employees of a construction company performing work on the runways of a new international airport, under contract with the federal government and on federal Crown land, was governed by provincial law. The Court stated, at pages 775 to 776:

In submitting that it should have been treated as a federal undertaking for the purposes of its labour relations while it was doing construction work on the runways of Mirabel, Montcalm postulates that the decisive factor to be taken into consideration the one work which it happened to be constructing at the relevant time rather than the nature of its business as a going concern. What is implied, in other words, is that the nature of a construction undertaking varies with the character of each construction project or construction site or that there are as many construction undertakings as there are construction projects or construction sites. The consequences of such a proposition are far reaching and, in my view, untenable: constitutional authority over the labour relations of the whole construction industry would vary with the character of each construction project. This would produce great confusion. For instance, a worker whose job it is to pour cement would from day to day be shifted from federal to provincial jurisdiction for the purposes of union membership, certification, collective agreement and wages, because he pours cement one day on a runway and the other on a provincial highway. I cannot be persuaded that the Constitution was meant to apply in such a disintegrating fashion.

14In other cases, the Supreme Court has considered whether the operation in question is “vital”, “essential” or “integral” to the core federal undertaking: United Transportation Union v. Central Western Railway Corp., 1990 CanLII 30 (SCC), [1990] 3 S.C.R. 1112.

15I find the circumstances of Montcalm to be analogous to the ones before me. The ordinary businesses of Xerox and of Manpower are document management and staffing respectively. In performing that work, their employees may provide services to companies that are provincial undertakings or federal undertakings but the “normal and habitual activities” of Xerox and Manpower are not matters reserved to federal regulation.

16Further, the general assertion that the work of providing “storage, faxing and scanning services” is integral to the operations of the CIBC does not establish that provincial regulation of the labour relations of Xerox or Manpower employees at the Tapscott location would “impair the core” of a federal head of power, as expressed in NIL/TU,O Child and Family Services Society. Just as the power to regulate the wages paid to employees constructing the airport runway in Montcalm was not seen as an integral part of federal competence over aeronautics, I am not satisfied that the power to regulate the human rights of Xerox or Manpower employees engaged in storage, faxing and scanning services for the benefit of the CIBC is integral to the federal power to regulate banking.

17I therefore find that Code applies to the employment of the applicants at the Tapscott location, and the Tribunal has jurisdiction over these Applications.

NEXT STEPS

18It appears that the Tribunal has not directly addressed the applicant Puran’s Request, filed on June 10, 2011, to add two individuals from Manpower as respondents. The Request was filed before the applicant retained counsel and it may be moot as Manpower has responded to the Application as the applicant’s employer. The Tribunal will not address the Request unless the applicant requests, within two weeks of this Interim Decision, that it do so.

19As Manpower has not filed full Responses to the Applications, it is directed to do so within four weeks of this Interim Decision, following which the applicants may file amended Replies within two weeks of their receipt of the Responses.

20These Applications will now proceed separately.

21I am not seized of these matters.